Joint Custody in Divorce
There had been an expanding trend, in Ontario, in loved ones and divorce law, more than the final few years, for household courts to order joint custody of children. The hope, by some, was that the parenting abilities of the parties could be improved with awards of joint custody. The current Ontario Court of Appeal decision of Kaplanis v. Kaplanis, has tried to put this trend into perspective.
In this decision, the parties were married in 1998 and separated in January 2002. The parties had a daughter who was born in October 2001. At trial, the father requested joint custody and the mother opposed the application, stating that the parties could not communicate without having screaming at every other. The trial judge granted the parties joint custody and the mother appealed the order. The appeal court set aside the order of joint custody and the mother was granted sole custody.
The Appeal Court held that, for an award of joint custody to be granted, there ought to be some evidence that demonstrates, that despite the parents personal robust conflict with every single other, the parties can and have cooperated and communicated appropriately with one another. In this case there was evidence to the contrary, there was no professional evidence to support the trial judge establish how a joint custody order would advance the childs emotional and psychological needs and the child was too young to communicate her personal wishes.
Around the exact same time this case was decided, the Ontario Court of Appeal also ruled on the case of Ladisa v. Ladisa, exactly where the appeal court upheld the trial judges order of joint custody. In this case the trial judge had the benefit of hearing the evidence of the Childrens Lawyer who presented the childrens wishes and who recommended joint custody. It was held that the trial judge had heard evidence from third parties with respect to cooperation and proper communication amongst the parties. The trial judge also looked at the history of co-parenting throughout the marriage and that in spite of their intense conflict, the parties could and had efficiently communicated with each and every other and placed the interests of their youngsters ahead their own, when required.
To summarize, in Ontario joint custody instances, it would seem that the courts will now be looking more closely for evidence from third party and professional witnesses, which can demonstrate that the parties can and have cooperated and communicated appropriately and have been in a position to put aside their personal differences and conflict, for the benefit of the kids. The lack of historical cooperation and proper communication between the parties will greatly limit the accomplishment of a joint custody application. The assumption by some, that the granting of joint custody will enhance the parenting skills of the parties, will not be an adequate reason on its own to grant joint custody, in the absence of existing very good cooperation and communication amongst the parties.
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